A new wave of fetal-protection measures creates a collision in American law — and exposes a moral conundrum

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In December of 2010, Bei Bei Shuai was pregnant, alone, and in despair: Her marriage had fallen apart, and her new boyfriend had broken his promise to leave his wife for her. In a desperate moment, the Indiana woman swallowed rat poison in an attempt to commit suicide. She survived; her fetus, delivered by caesarean section, did not. But instead of being sent home to receive mental health care, Shuai was charged with murder for attempting to kill the 8-month-old fetus, which enjoys its own separate protection under Indiana law. In August, she made a deal with prosecutors to plead guilty to criminal recklessness after spending more than a year in jail.

Shuai is one of hundreds of women who have found themselves caught in a gray area that appears to be widening in American law. Thanks to a patchwork of state court decisions and laws passed to protect pregnant women, punish abusers, promote public health, and discourage abortions, fetuses have steadily been gaining legal rights in American courts—rights that often conflict with those of the women who carry them. The shift has happened despite the failure, even in conservative states, of laws to establish “fetal personhood” outright.

Within the last five years, pregnant women have been arrested under fetal-harm statutes after falling down the stairs and driving with blood-alcohol levels of just half the legal limit. Other women have been forced against their will to undergo caesarean sections, or spend months on bed rest. The laws can affect people well beyond the woman herself, as in the recent Texas case of Marlise Muñoz, kept on life support for two months for the purpose of saving her fetus, despite her family’s wishes that she be allowed to die. In Wisconsin last summer, a pregnant woman named Alicia Beltran was taken to court in handcuffs after refusing to take an anti-addiction drug for a painkiller habit she had already kicked on her own. The court initially ignored her requests for a lawyer, but appointed a legal guardian for her 14-week-old fetus.

Lawyer and activist Lynn Paltrow, who is helping represent Beltran in a suit against several officials, coauthored a recent paper cataloging such cases and says she has found more than 700 instances since 1973 of women arrested, detained, or subjected to forced medical interventions because of issues related to their pregnancies. She is part of a group of legal scholars who are starting to raise the alarm about the breadth and meaning of what they see as a largely unappreciated shift in American law.

“What it means is that all fertile women are responsible for knowing at every single moment whether they’re pregnant,” says Paltrow, founder and executive director of the National Advocates for Pregnant Women. “Because at that moment an entirely different legal system comes into play.”

Michele Goodwin, a law professor at the University of Minnesota who wrote a forthcoming article on the topic for the California Law Review, calls the issue a “new constitutional battlefront,” turning pregnant women into unequal citizens in the guise of protecting them.

Though many “feticide” laws were pushed by conservative activists who see them as part of the fight against legal abortion, other fetal-rights cases have emerged in court rulings on laws intended to protect children from drugs, or protect pregnant victims of domestic violence. Whatever the motives, the laws have an effect with no real parallel elsewhere in the law: Essentially, two entities have begun to compete for rights in one body.

Underlying the phenomenon, the scholars are realizing, is an unsolved moral and philosophical question: how to establish protections for pregnant women without creating a second set of rights that can trump their own.

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FOR MOST OF AMERICAN HISTORY, the question of whether a fetus had any standing in court was a simple one: It didn’t. States went along with the common law “born alive” rule, which mandates that fetuses can only be declared legal victims of crimes if they have taken breaths independent of the mother. (Even where abortion was illegal for doctors to perform, it wasn’t considered a crime against the fetus itself.)

This approach followed a view that had existed since at least the 4th century BC, when Aristotle proposed a three-part framework of fetal development: The fetus moves from a “vegetable” stage to an “animal” stage and finally to the “rational” stage, soon after birth. The idea that a fetus is on a continuum, becoming gradually more “person-like” as it progresses from a cluster of cells to a viable entity to a newborn, has made a certain intuitive sense to most human beings throughout history. As political scientist Jean Reith Schroedel points out in her 2000 book, “Is the Fetus a Person?,” this is roughly analogous to the Supreme Court’s logic in the landmark 1973 case Roe v. Wade, which ruled that the fetus has no independent status in the first trimester. (For the purposes of this article, the term “fetus” is used to describe all stages of gestation.)

But the past 40 years have seen big shifts in both politics and technology that have made the fetus contested ground in American law. The most significant shift was Roe v. Wade, which created a motivated opposition looking for ways to push back against the legality of abortion, in part by creating a political movement around the threatened fetus. Their case has been helped by technology. Medicine has steadily pushed back the date at which a fetus is viable outside the womb; and the ultrasound, which came into wide use in the 1970s, offered the first visual encounter between the born and the unborn. The ultrasound “forces us to come to the terms with similarities between fetuses and born children,” said Luke Milligan, a law professor at the University of Louisville who has written about fetal homicide laws and personhood debates.

Since then, fetuses have increasingly been mentioned in laws and court decisions. The term “fetal rights” itself tends to be used by concerned progressives and legal scholars, but the idea’s chief support comes from the antiabortion movement, which sees stronger protection for fetuses as a counterweight to the abortion liberties created under Roe v. Wade. Fetal rights have arisen through two broad mechanisms: new laws that specifically address the fetus and afford it a special legal status; and decisions by judges and prosecutors to interpret existing laws to include fetuses.

The best-known law may be the federal Unborn Victims of Violence Act, passed in 2004, which recognizes fetuses at any state of development as legal victims if they are harmed or killed during the commission of certain federal crimes. (The law uses the antiabortion movement’s preferred term, “unborn child,” rather than “fetus.”) States, too, have laws that establish explicit protections for fetuses killed by violence against pregnant women: Today, some form of fetal homicide laws are enforced in 38 states, including Massachusetts.

These laws are often passed after well-publicized tragedies, and usually framed as ways to protect pregnant women from domestic violence. (Murder is a leading cause of death for pregnant women in the United States.) Passage of the Unborn Victims of Violence Act, for example, was triggered by the case of the pregnant California woman Laci Peterson, whose murder at the hands of her husband dominated cable news in 2003. But, as critics point out, they aren’t necessarily focused on the victimized women—indeed, not all states exempt pregnant women for harm done to their own fetuses. The ACLU and others have observed that the laws have changed over time: The newer wave of laws, unlike most fetal homicide bills written in the 1980s, are less likely to specify they apply to viable fetuses. In theory, they can apply even to women who don’t know they are pregnant.

Not all the laws involve prosecution. Some allow women to be detained, or let authorities intervene in their medical decisions, for the sake of fetal health. Seventeen states consider substance abuse during pregnancy to be child abuse, and three explicitly give authorities the power to confine pregnant women suspected of substance abuse because they are endangering their future child. In the recent case of Marlise Muñoz in Texas, the hospital refused to take her off life support out of fear of breaking a 1999 state law banning the withdrawal of “life-sustaining treatment” from pregnant women.

Even where states have not passed laws that explicitly mention the fetus, courts and prosecutors are often willing to interpret existing laws written to prevent child abuse and drug use to apply to protect the fetus—even if the perpetrator is the woman carrying the baby. In Alabama last year, the state Supreme Court ruled that a law that had been written to protect children from exposure to meth labs could apply to “children” still in the womb. Since then, Paltrow has counted more than 100 cases in which women have been arrested for endangering their fetuses.

Paltrow’s recent paper, published in the Journal of Health Politics, Policy and Law, shows that the peak of arrests and forced detentions of pregnant women actually came in the late 1980s and early 1990s. That was thanks to a confluence of factors, including the nascent War on Drugs and the panic over “crack babies.” Prosecutors began using existing child-abuse statutes to go after pregnant women for “abusing” their unborn children.

That scare has since subsided. But a continuing wave of laws passed in the last decade explicitly address fetal health and fetuses as separate legal victims of crimes. Although these trends originate in different places, and some are more politically motivated than others, they are converging to have significant implications for pregnant women—particularly, Goodwin points out, the low-income women who are more likely to find themselves in the crosshairs of law enforcement. She believes that race and social class are an important part of the story, and the fact that the burden tends to fall on “ignored” women may be one reason the issue has been largely out of the public eye. “We could have had perhaps at least a better, earlier conversation about these issues back in the 1980s,” she said, if legal experts had paid more attention to the women involved.

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FOR ALL THE POLITICAL DISAGREEMENT about fetal protections, the impulse comes from a widely shared human intuition: that it is morally worse to hurt or kill a pregnant woman, because more than one life—or potential life—is at stake.

The problem comes when this notion intersects with American law: How, exactly, is the legal system supposed to express this extra value? Schroedel’s book points out that pregnant women were granted “deference and protection” in early American law, even though there’s no indication that fetuses were thought of as rights-holding “persons” in the way the contemporary antiabortion movement describes them. The newer idea that the fetus has rights of its own creates the conflict Paltrow and others are worried about: It is a way of acknowledging a special moral status for pregnant women, but one that can sometimes work against them.

In some sense, the legal issue is driven by a deeper question that America has simply not resolved: what a fetus is, and when it acquires a special moral status. Describing it as simply a new part of a mother’s body until birth seems overly simplistic when babies born as small as one pound can now sometimes survive in intensive care. At the other extreme, the notion that a fetus is deserving of full human protections from the point of conception is a theological position that has virtually no legal support. The most extreme expression of this framework—the recent push for state “fetal personhood” laws—has split even antiabortion activists, some of whom point out that legal protections for early embryos would criminalize even some infertility treatments.

Public opinion polls and election results suggest that many Americans take a rather subtle approach to the question of fetal protection. A clear majority favor at least limited rights to legal abortion, but polling at the time of the Unborn Victims of Violence Act also found the vast majority approve of laws making fetal homicide a crime. Expressed as absolutes, those positions would directly contradict each other. To many, it seems, some kind of continuum—perhaps Aristotle’s notion of a fetus gradually acquiring personhood as it grows—still makes sense.

The issue tends to get caught in the calcified rhetoric of the abortion debate, and some see a missed opportunity there—a chance to grapple with an unresolved national question of deep moral significance. “It’s something there hasn’t been sufficient reflection on,” says Milligan, who has written scholarly work on the apparent philosophical inconsistencies in our current legal regime.

“It has become this conundrum, this intersection of human rights,” said Milligan. If progressives have been slow to move on an issue that has already animated the right, he also points out there’s a reason: It is progressives who have historically pushed to expand civil rights, yet who now find themselves concerned about the expansion of rights to fetuses. “It’s incumbent on modern progressives to focus on the intersections of those rights, and figure out how best to mediate those conflicting rights.”

Associated Press

Oliver Wendell Holmes

Goodwin, whose book “Policing The Womb: The Politics of Reproduction” will be published by Cambridge University Press later this year, would like to see new legal arguments developed, acknowledging the value of pregnancy by focusing on the dignity and rights of pregnant women rather than by creating a new status for the fetus. So far, however, such arguments have yet to emerge into the legal mainstream.

Meanwhile, the situation on the ground is changing yearly, and in some ways the states seem to be moving in different directions. New Jersey’s supreme court recently ruled that child-protection services don’t have jurisdiction over pregnant women, implying the fetus is not a “child”; North Dakota voters will weigh in on a restrictive new “fetal personhood” amendment in November. As for the pregnant women themselves, what they can expect on their own behalf seems ever more elusive.

Ruth Graham, a writer in New Hampshire, is a regular contributor to Ideas.

Correction: An earlier version of this article stated that murder is the No. 1 cause of death for pregnant women in the US. It is a leading cause of death for pregnant women in the US.

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